Sherry F. Colb

The Supreme Court Holds That Responding to Police Interrogation Waives The Right to Remain Silent

By SHERRY F. COLB
Monday, June 7, 2010

Last week, the U.S. Supreme Court held, in Berghuis v. Thompkins, that a suspect in custody who receives and understands the Miranda warnings and subsequently responds to questions after almost three hours of police interrogation has waived his right to remain silent.

Though I previously predicted this result, it nonetheless signals an alarming break with the philosophy of Miranda v. Arizona and leaves that decision to stand as an arbitrary disclosure requirement, rather than the protection against coercive interrogation that it was originally crafted to be.

The Thompkins Interrogation

The case began when two men were shot, one fatally, in Southfield, Michigan. Van Chester Thompkins, a suspect in the shooting, fled from the police. Approximately one year later, the police arrested him in Ohio. After Thompkins's arrest, a police officer gave Thompkins a written form containing Miranda warnings. The officer then asked Thompkins to read back part of the form, to ensure that Thompkins spoke English and understood the warnings he had received. Though he subsequently refused to sign a written acknowledgement that he had understood the warnings, the Supreme Court concluded, in the absence of evidence to the contrary, that Thompkins had, in fact, understood his right to remain silent.

After giving Thompkins the warnings and asking him to repeat one of them out loud, the police began to question Thompkins about the crime for which he was arrested. He was quiet during most of the questioning, which went on for nearly three hours, and only occasionally provided one-word answers. In two such replies, he stated that his chair was hard and that he did not want the peppermint that was offered to him. Even one of the interrogating detectives characterized the interrogation as "very, very one-sided" and "nearly a monologue."

After almost three hours of questioning, one of the detectives asked Thompkins whether he believed in God. He answered in the affirmative. The detective then asked whether Thompkins prayed to God, to which the detective also received an affirmative response. And most critically, the detective asked whether Thompkins prayed to God to forgive him "for shooting that boy down," to which Thompkins responded, "Yes." This confession was introduced in evidence at the trial, after which Thompkins was convicted of first-degree murder and other crimes and sentenced to life imprisonment without the possibility of parole.

The Court's Rejection of Thompkins's Miranda Claim

In the Supreme Court, Thompkins argued, among other things, that the custodial interrogation that led to his ultimate confession violated Miranda, because he had never waived his Miranda rights.

The Supreme Court rejected this claim and held that if police provide warnings to a suspect, and the suspect understands the warnings, then interrogation may proceed and an answer to a question — if not compelled — will be presumed to constitute a waiver. Though Thompkins's silence during much of the questioning might have evidenced a desire to end interrogation, the Court held that invocation of the Miranda right to silence must be unambiguous — just as the analogous invocation of the Miranda right to an attorney must be unequivocal, under Davis v. United States.

The Invocation and Waiver of Miranda Rights

The Court reasonably applied its Davis precedent to reject the claim that Thompkins had affirmatively invoked his right to remain silent. Given the intimidating context in which suspects must invoke their rights, one can, of course, take issue with the Court's prior decision in Davis to require suspects to ask directly and unequivocally for an attorney. After Davis, however, it does seem readily to follow that an equivocal invocation of the right to silence would be ineffective.

Notably, in Davis, the issue was whether the suspect had invoked his right to counsel. This was because the suspect had already explicitly waived his right to counsel before his interrogation began and therefore, quite understandably, was required to make a showing that he had subsequently invoked the right before he could be said to have triggered an obligation on the part of the police to cease their questioning.

In Thompkins, by contrast, there was never an explicit waiver of the right to remain silent. The Court nonetheless found that Thompkins's failure to invoke his right to silence after receiving and understanding the warnings, coupled with his voluntary responses to interrogation, amounted to a waiver. To understand the flaw in this conclusion, it is useful to consider the purpose and underlying theory of Miranda.

In Miranda, the Supreme Court was concerned about protecting against the psychologically-coercive tactics sometimes deployed by police to obtain confessions. After detailing a few such tactics, the Court concluded that absent "adequate protective devices" to "dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." The Court crafted the warnings (about the right to remain silent, the right to an attorney, etc.) as just such a protective device, meant to empower the suspect to resist the inherent compulsion of custodial interrogation.

Significantly, the information supplied in the warnings need not be given to suspects outside of custody when they face police questions. The reason for this differential treatment, according to the Miranda Court, is the "the compulsion inherent in custodial surroundings." The information about one's rights thus functions as a means of reducing compulsion, rather than simply as a disclosure of legal facts.

In Thompkins, the Court expressly rejected this vision of custodial interrogation and stated that "[t]here is no authority for the proposition that an interrogation of this length [three hours] is inherently coercive." Yet the notion that custodial interrogation — of whatever length — is inherently coercive appears explicitly in Miranda, as quoted above.

The Court acknowledged that "[s]ome language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit waiver or a formal, express oral statement" and quoted Miranda saying that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." (emphasis added)

This, however, was precisely the foundation for the Court's conclusion that Thompkins had waived his rights: Thompkins received (and understood) warnings and eventually gave a confession. He never indicated — other than by his silence, and by his eventual confession —a wish to relinquish his right to remain silent.

What Exactly Is a "Right To Remain Silent"? Two Possible Approaches

If we consider the "right to remain silent" in a vacuum, we might envision two different interpretations. First, possessing this right could mean that police may interrogate a suspect against her will, but that the suspect may remain silent, without penalty, in the face of that interrogation. Alternatively, it might mean that police must not interrogate a suspect unless and until she says or does something affirmative to give up her right to remain silent. On this alternative approach, the right to remain silent would amount to a right not to be questioned.

The language of Miranda quoted earlier favors the second meaning, by suggesting that being silent after receiving the warnings, and then giving a statement in response to questions, do not alone relinquish the right to remain silent. If the right were simply to remain quiet while questions are asked, then remaining quiet at first but then answering questions would necessarily waive that right. (Similarly, if you had a right to remain seated and then you voluntarily stood up, you would thereby waive your right to remain seated.)

The Court's Odd Choice of the First Interpretation of the Right to Remain Silent

The Court in Thompkins, in apparent contrast to the Court in Miranda, seemed to embrace the first construction of the right to remain silent, by allowing a waiver of the right to occur after interrogation had commenced, through a response to that interrogation.

"Thus," as the Court said, "after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights." If the right were not to be interrogated at all, then one could not waive that right after the interrogation had already occurred.

The difficulty in taking this first approach to the right to remain silent, however, is that it would — if consistent — apply even after the suspect had expressly invoked a right to remain silent. That is, if the right to remain silent were simply a right not to respond to interrogation (rather than a right not to be interrogated at all), then asserting that right, by saying, for example, "I choose to exercise my right to remain silent," would be perfectly consistent with the police continuing their interrogation after invocation.

Yet this is not the position that the Court took in Thompkins. Instead, it said there of the right to remain silent and the right to counsel that "[b]oth protect the privilege against compulsory self-incrimination [citations omitted], by requiring an interrogation to cease when either right is invoked." Later, the Court emphasized that "[i]f the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease."

The strangeness of this state of affairs bears emphasis. The suspect in custody who has received (and understood) his warnings has the right to remain silent. The Court acknowledged, moreover, that "[e]ven absent the accused's invocation of the right to remain silent, the accused's statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [Miranda] rights.'" That waiver, however, need not occur until after police begin their interrogation — unless, that is, the suspect expressly invokes the right, in which case waiver must occur before any interrogation.

The right to silence thus means something different for those who simply remain silent (as the warning appears to advise the suspect he has the right to do) than it means for those who choose to speak after the warnings and say "I assert my right to remain silent." Actually remaining silent accordingly places one in a right-to-silence purgatory between Miranda heaven (where one has asserted the right to remain silent, and must therefore be free of police questioning) and Miranda hell (where one has given a confession in response to interrogation questions and thereby waived the right to remain silent). In the Court's words, "[i]f Thompkins wanted to remain silent, he could have said nothing in response to [the detective's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation."

There is nothing, however, in the Miranda decision or in the required warnings themselves that would alert the suspect in custody to the fact that the "right to remain silent" is really two different rights, and that one must utter magic words to go from possessing only one of these rights (to remain silent while interrogation takes place) to possessing the other right (to avoid interrogation altogether). Thus, the law of Miranda sets a trap for the unwary — the very people who are feeling unable to assert themselves — to be subjected to interrogation until they are worn down and respond to questions.

The Miranda decision itself envisioned suspects in custody as vulnerable, unassertive, and in need of protection. It accordingly would have been far more consistent with that decision — and internally coherent — had the Court required, in Thompkins, that unless a suspect specifically initiates an exchange with the police after the warnings, police must ask a simple question — as police in many jurisdictions already do — before beginning an interrogation: "Having these rights in mind, do you wish to talk to us now?"


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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